Commonwealth v Vance
[2005] ACTCA 35
COMMONWEALTH OF AUSTRALIA and AIR MARSHAL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE v RUSSELL VANCE [2005] ACTCA 35 (23 August 2005)
EVIDENCE – privileges – legal professional privilege – Evidence Act 1995 (Cth) – in-house lawyers – whether the legal advice is independent of the employment relationship.
EVIDENCE – privileges – legal professional privilege – practising certificates – whether legal professional privilege attaches only where there is an actual right to practice.
EVIDENCE – privileges – parliamentary privilege – evidence given to a Senate Committee – whether parties can lead evidence, cross-examine or make submissions as to what was said to Senate Committee – effect of s 16 Parliamentary Privileges Act 1987 (Cth).
WORDS AND PHRASES – ‘lawyer’, ‘legal advice’.
Supreme Court Act 1933 (ACT), s 37E
Evidence Act 1995 (Cth), s 117, s 118
Parliamentary Privileges Act 1987 (Cth), s 16
Supreme Court Rules 1937 (ACT), Order 34 rule 3
Defence Act 1903 (Cth), s 123
Judiciary Act 1903 (Cth), s 55
Waterford v The Commonwealth (1987) 163 CLR 54
Mann v Carnell (1999) 201 CLR 1
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228
Maxwell v Murphy (1957) 96 CLR 261
Papakosmas v The Queen (1999) 196 CLR
W v R (2001) 189 ALR 633
R v Ellis (2003) 58 NSWLR 700
Grant v Downes (1976) 135 CLR 674
Sydney Airports Corporation Ltd v Singapore Airlines & Qantas Airways Ltd [2005] NSWCA 47
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners(No 2) [1972] 2 QB 102
The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500
R v Shirose (1999) 133 CCC (3d) 257
Three Rivers District Council and others v Governor and Company of the Bank of England (No. 5) [2004] 3 All ER 168
Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131
McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365
Glengallan Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233
Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649
Rann v Olsen (2000) 172 ALR 395
Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
S McNichol, ‘Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted’, (1999) 18 Australian Bar Review 189
No ACTCA 31-2004
No SC 317 of 2001
Judge: Gray, Connolly and Tamberlin JJ
Court of Appeal of the Australian Capital Territory
Date: 23 August 2005
IN THE SUPREME COURT OF THE ) No ACTCA 31-2004
) No SC 317 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:COMMONWEALTH OF
AUSTRALIA
First Applicant
AND:AIR MARSHAL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE
Second Applicant
AND:RUSSELL VANCE
Respondent
ORDER
Judge: Gray, Connolly and Tamberlin JJ
Date: 23 August 2005
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The orders of Crispin J be set aside except as to the costs of the application relating to the recall notice of motion.
The matter be remitted for determination in accordance with these reasons.
Leave be refused to appeal from the decision of Crispin J in relation to the costs of the recall notice of motion.
IN THE SUPREME COURT OF THE ) No ACTCA 31-2004
) No SC 317 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:COMMONWEALTH OF
AUSTRALIA
First Applicant
AND:AIR MARSHAL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE
Second Applicant
AND:RUSSELL VANCE
Respondent
REASONS FOR JUDGMENT
Judges: Gray, Connolly and Tamberlin JJ
Date: 23 August 2005
Place: Canberra
THE COURT:
This is an application for leave to appeal from a judgment delivered by Crispin J on 2 September 2004 in which his Honour ordered that certain documents were not subject to legal professional privilege, and also from a subsequent costs order made by his Honour on 30 September 2004. It was common ground that these were in the nature of interlocutory orders and, accordingly, leave to appeal is necessary pursuant to s 37E (4) of the Supreme Court Act 1933 (ACT).
The matter arises from a dispute concerning the termination of the appellant’s employment as a Squadron Leader in the Royal Australian Air Force (RAAF) on 21 August 1998. The respondent had served with the RAAF at the air base at Butterworth, Malaysia, for a period in the 1990’s. Certain issues arising during his period of service were the subject of a Board of Inquiry which was appointed on 24 October 1995 and which reported in September 1997.
The issues on appeal
On responding to discovery, the applicants claimed legal professional privilege over a range of documents. The evidence before the trial judge, and before us, was that those documents were prepared by persons who were employed in the Defence Legal Office, and who had been admitted to practice law in various Australian jurisdictions. They did not, however, hold current practising certificates. His Honour found that this was fatal to the claim for privilege. He held that the privilege arises only to protect the confidentiality of a legal adviser when he or she has an actual right to practice. His Honour said (at [47]) of his judgment:
... for this reason alone, the present claim to privilege must fail, at least in relation to communications with military or civilian DLOs [Defence Force Legal Officers] who did not hold practising certificates and were not stationed at the relevant times in Queensland or Western Australia.
The applicants submitted that, by holding that a claim for legal professional privilege could only be brought where a document was authored by a person holding a current practising certificate, his Honour had erred in introducing a requirement not found in either the Evidence Act 1995 (Cth) (the Evidence Act) or at common law. This was the substantive issue in the appeal before us.
It was also submitted that his Honour had been lead into error in that material was introduced into evidence before him contrary to the Parliamentary Privileges Act1987 (Cth) (the Parliamentary Privileges Act). In seeking to challenge the claim for legal professional privilege, the respondent had produced material suggesting that DLOs [Defence Legal Officers] lacked an appropriate degree of professional independence to maintain a claim for legal professional privilege. Some of this material referred to in his Honour’s judgment (at (AB 87 [60]) included evidence given in 1998 by Ms Jacqui Kelly, a Minister in the Federal Government and a former RAAF legal officer, to the Senate Joint Standing Committee on Foreign Affairs, Defence and Trade. No objection to this material was taken before his Honour, but the Commonwealth now says on this appeal that its admission and consideration was contrary to the Parliamentary Privileges Act.
The application of the Evidence Act to pre-trial discovery
In reaching his decision on the claim for privilege, the trial judge placed reliance on a number of cases including Waterford v The Commonwealth (1987) 163 CLR 54, which had been decided before the enactment of the Evidence Act. From those cases it was possible to conclude that for the purpose of the privilege at common law, in order to place “salaried legal advisers” on the same footing as legal advisers, the salaried legal advisers should be practising barristers or solicitors (cf S McNichol, ‘Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted’, (1999) 18 Australian Bar Review 189 at 193 citing Deane J in Waterford at 81).
The placing of reliance upon the common law authorities rather than a consideration of the particular provisions of the Evidence Act gives rise to the preliminary issue as to whether the claim for privilege is, in fact, to be determined under the common law or the Evidence Act. In Mann v Carnell (1999) 201 CLR 1 and Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, the High Court had held that the Evidence Act applied only to the adducing of evidence in proceedings, it did not apply to matters arising from pre-trial applications including interrogatories and discovery. The Supreme Court Rules 1937 (ACT) originally gave effect to this decision. The relevant rule was subsequently replaced by the present rule (Supreme Court Rules O 34 r 3) which provides that a document is not discoverable if it would not be admissible in evidence under the Evidence Act if the other party were to object. It was submitted by the respondent that, although the relevant provision of the Supreme Court Rules at the time of the hearing before Crispin J made it clear that the test under the Evidence Act applied both to whether a document was discoverable and whether a document was admissible at trial, the rule was to the opposite effect on the date the substantive action commenced, and that, accordingly, it was this form of the rule which should have applied at the hearing of the application. Although, having regard to our findings not much may turn on this, it was submitted that the common law position as to legal provisional privilege should apply to determine whether the documents should be discovered.
It seems to us that it is well established that the rules of court, being by definition subordinate legislation dealing with matters of practice and procedure, are to be construed as operating with effect to all matters before the Court, and that a party does not, upon commencing a proceeding, obtain some form of accrued right to have that matter and all interlocutory issues arising during the course of the matter, determined pursuant to the rules of court as they stood at the date of the originating application.
So much was determined in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 at 233, where Menzies J stated:
Prima facie, of course, it is the amended rule that governs procedure in current actions.
Gibbs J cited the remarks of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267 that:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69 –
No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done.
We would make the observation that this longstanding rule is perhaps of even more significance in an era such as the present in Australia when rules of court across a range of jurisdictions are subject to frequent amendment and reform. It would add a significant layer of cost and complexity to litigation if the appropriate rule were to depend on the date of the commencement of the action.
Accordingly, we are satisfied that the test for whether documents are privileged from discovery in these proceedings is not the common law test but that laid down in the Evidence Act.
The Evidence Act provisions
Supreme Court Rules Order 34 r 3 provides, as it did at the time of the hearing before Crispin J, that:
3 ...
(3) Also, a document is not discoverable by a party to an action if the document is-
...
(c)a confidential document (whether delivered or not) and a solicitor for the party certifies in writing to the effect that evidence of the contents of the document would not be admissible in the action under the Commonwealth Evidence Act, part 3.10 (Privileges), division 1 (Client legal privilege) if the party were to object to the admission of the evidence.
This rule clearly intends that the provisions of the Evidence Act concerning client legal privilege be applied to test whether a document is discoverable, although, we observe that the statutory test is not one of admissibility but rather, more accurately, whether evidence may be “adduced”.
The Evidence Act provides in s 118 that:
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
For the purposes of s 118, s 117 defines “client” to include:
(a) an employer (not being a lawyer) of a lawyer;
(b) an employee or agent of a client;
(c) an employer of a lawyer if the employer is:
(i) the Commonwealth or a State or Territory; or
(ii) a body established by a law of the Commonwealth or a State or Territory.
The term “confidential document” is defined in s 117 to mean:
… a document prepared in such circumstances that, when it was prepared:
(a)the person who prepared it; or
(b)the person for whom it was prepared;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
The definition section has particular significance in the present case by defining the first applicant, the Commonwealth, as the employer of a lawyer as being the client and by defining what constitutes a confidential document. It may also be noted that “Lawyer” is defined in the Dictionary to the Act as meaning a barrister or solicitor. More particularly, the Evidence Act describes the occasion for the operation of the privilege as having a dominant purpose of providing legal advice.
Where the Evidence Act demonstrates an overall intention to cover the field in a comprehensive manner in relation to particular aspects of the rules of evidence, the matter is to be determined by reference to those statutory provisions (cf Papakosmas v The Queen (1999) 196 CLR 297 at 302, 312, 324; W v R (2001) 189 ALR 633 at 649-650; R v Ellis (2003) 58 NSWLR 700 at 715-718). Decisions at common law may perhaps inform those provisions, but it is the provisions of the Act to which effect must be given. In the present case, the point is that the occasion of the privilege described by the Evidence Act does not specifically require anything more than admission to the status of lawyer for its operation.
His Honour’s reasoning in the present case
In his reasoning, Crispin J placed emphasis on the public interest in facilitating the representation of clients by legal advisers as the traditional common law rationale of the privilege (Grant v Downes (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ). However, we note that the words in the Evidence Act appear to cast a much wider net and to extend its ambit to legal advice generally. By reasoning in the way that he did without reference to the legislation, Crispin J was able to conclude, in reliance upon the authorities decided under the common law, that a vital concomitant of representation of clients was the ability to be in a position to exercise the right to do so. Notwithstanding that s 123 of the Defence Act 1903 (Cth) (the Defence Act) does not bind members of the Defence Force to comply with any law of a State or Territory that would require permission to do anything in the course of that member’s duty as a member of the Defence Force, his Honour, rightly we think, did not draw an inference that such members should be treated as holding practising certificates. It may be noted that whilst the States and Territories generally require the holding of a practising certificate, Queensland and Western Australia confer limited rights to practise upon government lawyers generally and that they may be prescribed to do so in the Northern Territory.
Crispin J saw the requirements for practising certificates as a legislative scheme for the regulation of the legal profession. He said at [45]:
The requirements for practising certificates are not mere formalities. They form an important part of the legislative scheme for the regulation of the legal profession. For example, if the Professional Conduct Board of the Law Society of the ACT finds that a solicitor of the Territory is guilty of professional misconduct or unsatisfactory professional conduct warranting suspension from practise, its only statutory power to impose such a sanction arises from s 58 of the ACT Legal Practitioners Act which authorises it to “suspend for a specified period not exceeding 12 months any practising certificate held by the solicitor”. In the absence of any effective power to suspend defaulting practitioners, the Professional Conduct Board’s ability to compel compliance with proper professional standards would be substantially more limited. Hence, in a practical sense, lawyers without practising certificates cannot be said to have the same liability to professional discipline as their colleagues.
We would agree as to the importance of such certificates but would say that their existence in the particular case demonstrates, rather than concludes, the issue of it being evidence of the independent advice given professionally so as to constitute it being legal advice within the Evidence Act requirements. Accordingly, we would not be prepared to conclude as his Honour did at [47] of his judgment:
In my opinion, privilege arises to protect the confidentiality of communications with a legal adviser only when he or she has an actual right to practise and not merely when he or she has been admitted and joined the ADF [Australian Defence Force], even if permitted to carry out ADF legal duties without holding a practising certificate by s 123 of the Defence Act. If (sic) for this reason alone, the present claim to privilege must fail, at least in relation to communications with military or civilian DLOs [Defence Legal Officers] who did not hold practising certificates and were not stationed at the relevant times in Queensland or Western Australia.
The evidence here, as found by his Honour, is that the advice in the documents for which privilege was claimed was given by six DLOs who were legally qualified and had been admitted to practise (AB 71-72). Admission to practise of itself carries with it an obligation to conform to the powers of the Court to remove or suspend a legal practitioner for conduct that the Court considers justifies such a determination. Under s 55D (1)(b) of the Judiciary Act 1903 (Cth), a person whose name is on the roll of barristers, solicitors, barristers and solicitors or legal practitioners of the Supreme Court of a State or Territory is entitled to practise as a barrister and solicitor in any Territory unless suspended or disentitled by Court order. The Court has power to order that any person on the roll not be entitled to practise if that person is guilty of misconduct. The person remains bound to uphold the standards of conduct and to observe the duties undertaken upon admission to the roll of practitioners. The holding of a practising certificate reinforces that regime and makes it more immediately applicable but the underlying obligations subsist, even if a current practising certificate is not held. However, by not holding a practising certificate, a person cannot necessarily be seen as independent or as necessarily acting in a legal professional capacity as a person who holds one, so as to give the quality of that person’s advice the description ‘legal advice’.
It seems to us that his Honour erred in holding that client legal privilege pursuant to the Evidence Act can only be established where the lawyer who provided the advice holds a current practising certificate.
In Sydney Airports Corporation Ltd v Singapore Airlines & Qantas Airways Ltd [2005] NSWCA 47, Spigelman CJ said at [18]:
The fact that an in-house solicitor is entitled to claim privilege on behalf of his or her employer as a client is now well established (see Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500, at 530-531; Waterford v The Commonwealth (1987) 163 CLR 54 at 61-62, 79-82, 95; Ritz Hotels v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100, at 102. This proposition is confirmed in the Evidence Act by reason of the fact that the word “client” is defined in s 117 to include “an employer (not being a lawyer) of a lawyer.
It seems to us that, where client legal privilege is claimed over documents produced by an in-house lawyer, particularly when that in-house lawyer is employed in government service, the question is whether the document would meet the statutory test of being a confidential document, that is to say, was it prepared in such circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
Where the lawyer is a private practitioner, whether a barrister or solicitor, and the holder of an appropriate practising certificate, such a question is readily answered in the affirmative. Where the lawyer is employed, real questions as to the nature of their role and duty may arise. In an oft cited passage, Denning MR said in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners(No 2) [1972] 2 QB 102 at 129 that:
The law relating to discovery was developed by the Chancery Courts in the first half of the 19th century. At that time nearly all legal advisers were in independent practice on their own account. Nowadays it is very different. Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer ... They are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges. ...
Being a servant or agent too, he may be under more pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser ... There is a safeguard against abuse ... If there is any doubt as to the propriety or validity of a claim for privilege, the master or judge should without hesitation inspect the documents himself so as to see if the claim is well-founded or not.
These remarks were endorsed by the High Court in The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500.
In the present case, his Honour had before him allegations that DLOs, being serving members of the defence force, were subject to a requirement to follow orders of a superior officer. While in some cases the material said to support these allegations was subject to parliamentary privilege, his Honour at [68] of his reasons (AB 89) referred to an incident that was said to have occurred during the course of the Board of Inquiry into the respondent’s conduct at Butterworth, when the President of the Board is said to have ordered a DLO who had been assigned to represent the respondent to “hand over all files, all papers and all documentation in relation to … all advice that he may have given to [Squadron Leader] Vance”. It seems clear that this order required that DLO to breach client privilege in relation to advice that they had given to the respondent, and there would be a very real issue as to whether subsequent documentation prepared by that DLO would be amenable to a claim for privilege, although apparently no documents which are the subject of the present application fall into this description.
There are two important aspects related to s 118 of the Evidence Act. The communication must be confidential and its dominant purpose must be to provide legal advice. Because employed lawyers (particularly those employed not exclusively to exercise their legal skill and knowledge) may act in other capacities, the comments of the Supreme Court of Canada are pertinent. In R v Shirose (1999) 133 CCC (3d) 257 at 288-289, the Court said:
It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor-client relationship is not protected. A comparable range of functions is exhibited by salaried corporate counsel employed by business organisations. Solicitor-client communications by corporate employees with in-house counsel enjoy the privilege, although (as in government) the corporate context creates special problems … In private practice some lawyers are valued as much (or more) for raw business sense as for legal acumen. No solicitor-client privilege attached to advice on purely business matters even where it is provided by a lawyer … Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.
In the context of the Evidence Act, it is an important aspect that the Act extends the privilege to “legal advice”. Other advisings in the course of an employee carrying out general duties of employment would not be protected by the Act. Legal advice does not mean all or any advice which may, in fact, be given by a lawyer: see Three Rivers District Council and others v Governor and Company of the Bank of England (No. 5) [2004] 3 All ER 168 at 173, Court of Appeal. In that case the court concluded:
In summary, the authorities to which we have referred show that, where a solicitor-client relationship is formed for the purpose of obtaining advice or assistance in relation to rights and liabilities, broad protection will be given to communications passing between solicitor and client in the course of that relationship. In all the cases, however, the primary object of the relationship was to obtain assistance that required knowledge of the law. We do not consider that the same principle applies to communications between solicitor and client when the dominant purpose is not the obtaining of advice and assistance in relation to legal rights and obligations.
It seems to us that the possession of a current practising certificate can be a very relevant fact to take into account in determining whether or not an employed lawyer, whether or not in government service, is employed in circumstances where they are acting in accordance with appropriate professional standards and providing the independent professional legal advice such that would attract a claim for client legal privilege under the Evidence Act. To make the holding of a practising certificate a pre-condition for such a claim, however, seems to us to go beyond the requirements of the Evidence Act, and to amount to appellable error.
As his Honour acknowledged, it is not a requirement in all Australian jurisdictions to hold a practising certificate, and indeed in the Australian Capital Territory it is only necessary for solicitors to hold practising certificates; there being no statutory provision for a barrister’s practising certificate. It seems to us that, while the possession of a certificate is an important factor that would go to establishing the statutory requirement of a confidential communication for the dominant purpose of providing legal advice, to hold that it is conclusive is incorrect. A legal adviser in government or commercial practice may hold a practising certificate, and yet in some aspects of his or her employment, that person may act in a manner inconsistent with the assertion of legal professional privilege. It would not be an answer to the complaint about the conduct of the DLO who is said to have handed over the files of their advices to the respondent to their superior officer to say that their conduct met professional standards merely because they held a practising certificate. Equally, a legal adviser may act in an entirely professional manner, generating a claim to client legal privilege, in the absence of a practising certificate.
At common law, there have been a number of first instance decisions in other jurisdictions that have held that the absence of a practising certificate does not conclusively establish that a claim for legal professional privilege did not arise. This was the view of Gillard J in the Victorian Supreme Court in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111]. In McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365, Downes J preferred the reasoning of Gillard J to that of his Honour in Vance v McCormack, saying (at [51]):
The real test is whether the advice had the necessary quality of being independent advice. Whether or not legal professional privilege is attracted should be determined by the substance not the form. The rise of requirements for practicing certificates is relatively recent and is associated primarily with regulatory considerations and matters associated with lawyers holding themselves out to the public as qualified. Many of these considerations are irrelevant to the role of the employed lawyer.
The Queensland Court of Appeal, in Glengallan Investments Pty Ltd v ArthurAnderson [2002] 1 Qd R 233, held only that it was necessary for a lawyer to be admitted to practice for a claim of legal professional privilege at common law to be sustainable.
In Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649, a decision handed down after oral argument in this appeal, Lee J, after a review of the common law authorities (at [64]-[71]), and a discussion of the particular matters pertinent to the documents that he was considering (at [85]-[98]) concluded by saying (at [99]):
In the end the question is one of fact, namely, whether the client and the practitioner expected and accepted that the obligations of an independent legal practitioner were to be met by the practitioner. If a practitioner employed as an officer of a government department or entity was regarded as, and accepted the responsibilities of, a legal advisor, then the fact that he or she was not practising his or her professional skill on his or her own account, or as an employee of a firm of practitioners, would not result in the denial of client legal privilege for communications with that practitioner regarding the seeking and providing of such legal advice.
It is clear from this passage that his Honour, in that case, did not regard the absence of a practising certificate as conclusive.
It seems to us that, insofar as his Honour held at [47] of his judgment, that the claim to privilege must fail because the documents the subject to the claim for client legal privilege were authored by DLOs who did not hold practising certificates, the appeal must succeed on this point.
Was material considered by the trial judge contrary to the Parliamentary Privileges Act 1987 (Cth)?
His Honour, properly in our view, had to consider whether or not the persons giving the advice were giving advice in circumstances that would give rise to a claim for privilege, that is, that the advice could properly be described as legal advice. He was guided by the remarks of Mason and Wilson JJ in Waterford v The Commonwealth of Australia at 62 where their Honours said:
In our opinion, given the safeguards to which reference is made in the various citations, there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. In Grant v Downs (1976) 135 CLR 674 at 685, Stephen, Mason and Murphy JJ, in a much-cited passage, said:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.
To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice and independent character notwithstanding the employment.
In seeking to address this question of fact, material was adduced in the hearing before his Honour, apparently without objection, that related to evidence given before a Committee of the Senate by Ms Kelly, then a Member of the House of Representatives, and now a Minister, and formerly a legal officer in the RAAF. Her evidence went to what may be described as the culture of RAAF legal officers. His Honour quoted from or made reference to Ms Kelly’s evidence at [60] (AB 87), [64] (AB 88), [65] (AB 89) and [71] (AB 90).
His Honour then said, correctly in our view, at [84] (AB 95):
The decisive question is whether, as a matter of fact, the relationship between the lawyers and their employer involved professional relationships which secured to the advice sought or conveyed by the relevant documents an independent character notwithstanding the employment. That is a question that may not be adequately answered merely by reference to a few instances in which employed lawyers acted improperly but, on the other hand, cannot be answered merely by reference to defensive or aspirational statements made, however sincerely, on behalf of the employer. It requires due consideration of all of the evidence including that relating to such factors as the employment structure and chain of command insofar as those factors may impinge upon the independence of employed lawyers, directions in fact given by superior officers and attitudes and occurrences capable of casting light on the true nature of the relationships in question.
In answering this question of fact, his Honour clearly and expressly had before him the evidence given by Ms Kelly to the Senate Committee. While this was not objected to at the time, it is clear to us that this evidence was admitted contrary to the provisions of the Parliamentary Privileges Act. Section 16 of this Act provides:
16 Parliamentary privilege in court proceedings
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
It seems to us that the material referred to by his Honour deriving from evidence given by Ms Kelly to a Senate Committee falls squarely within the definition of proceedings in Parliament, and accordingly should not have been tendered or received in the hearing below.
Although, in the ordinary course, the failure of a party in proceedings below to challenge the admission of evidence may tell against them on appeal, there is strong authority for the proposition that the prohibition on the tender or receipt of proceedings in Parliament, being a privilege of the Parliament, cannot be waived or consented to by either party. This was made clear in Rann v Olsen (2000) 172 ALR 395 where Prior J said at [226]:
The principle is that courts will not allow any challenge to be made to what is said or done within the walls of parliament in performance of its legislative functions. It therefore extends to things said by witnesses before its committees. It is not capable of waiver or exception in favour of the maker of the statement, nor can it be confined to proceedings seeking to assert legal consequences against the maker of the statement for making the statement.
In that case, both the plaintiff and the defendant to a defamation proceeding had an interest in making reference to certain things said at a Parliamentary Committee. Nevertheless, the Full Court of the South Australian Supreme Court held that the material could not be received. Lander J said at [399]:
Neither party is entitled to waive the operation of the section. The section is not included for the benefit of the parties but for the protection of the privileges of the parliament. So it follows that even though the plaintiff does not object to the defendant attempting to establish that his evidence before the Parliamentary Committee was a lie or that he was motivated to commit character assassination the law operates to prevent Mr Olsen from doing so.
It seems to us that the Parliamentary Privileges Act clearly prohibited his Honour from having regard to what Ms Kelly said to a Senate Committee, and that although no objection was taken when this material was put before him, this Court must conclude that his Honour was thereby led into error. The reasoning of the Full Court of the South Australian Supreme Court in Rann v Olsen is, it seems to us, clearly correct, and in any event we would be inclined to give significant regard to a decision of a Full Court of five judges in a State Court in relation to the appropriate construction of a federal statute. The High Court in Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 makes it clear that, in considering a federal law or a uniform national law:
an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.
(per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 492).
The Disposition of the Privilege Claim
It seems to us that the appropriate course for the matter is to grant leave to appeal in relation to the determination of the trial judge that client legal privilege could not be made out in relation to the subject documents.
In our view, his Honour took an erroneous approach as to the absolute necessity for a practising certificate to found the claim for privilege and, further, his Honour’s reference to material protected by parliamentary privilege may have well influenced his Honour’s determination as to the lack of independence so as to characterise the disputed communications as legal advice. Having regard to the conclusions we have reached as to this approach taken by his Honour, and having regard to the interlocutory nature of his Honour’s decision, it is not, in our view, necessary or appropriate for this Court on appeal to make a determination as to whether the legal material in respect of which the claim is made was privileged. The matter should be remitted to the trial judge for further consideration in accordance with these reasons. This will involve applying the test for client legal privilege pursuant to the Evidence Act, and will involve answering the question, on evidence that does not offend the Parliamentary Privileges Act, as to whether the DLOs who produced the subject documents were subject to appropriate professional independence to enable its characterisation as legal advice.
Leave to appeal on the question of costs of the further hearing
The appellant also sought leave to appeal from the interlocutory decision of his Honour on 8 September 2004. His Honour had handed down his reasons for rejecting the privilege claim on 2 September 2004. Certain passages in his original reasons were capable of being read as being critical of certain conduct of counsel in relation to the conduct of the Board of Inquiry. These counsel issued a notice of motion to have the judgment recalled, and this matter came on for hearing on 8 September 2004. A transcript of these proceedings was at AB 317-349.
His Honour indicated that he had been misled by a reference in an affidavit tendered by the respondent which contained a factual error in relation to dates, which resulted in the comments in his original reasons, which he corrected. He ordered that the Commonwealth pay the costs of the recall notice of motion due to the incorrect reference to dates in the affidavit filed by the Commonwealth (AB 345-9). It seems to us that this was an appropriate exercise of the undoubtedly wide discretion that his Honour had in relation to costs, and does not warrant the grant of leave to appeal.
The orders of the Court are therefore that the appeal be allowed. The orders of his Honour, except as to the costs of the application relating to the recall notice of motion, be set aside. The matter is remitted for determination in accordance with these reasons. In view of the fact that the appellants did not object to the evidence given under parliamentary privilege, the court will hear the parties on the question of costs. If application is made for costs, the application should be made in writing within 14 days, the other party having the right to respond, also in writing, within 14 days of receiving the application. Leave is refused to appeal from the decision of his Honour in relation to the costs of the recall notice of motion.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 23 August 2005
Counsel for the appellants: Mr A Robertson SC and Mr R Crowe SC
Solicitor for the appellants: The Australian Government Solicitor
Counsel for the respondent: Mr F J Purnell SC, Mr G Clarke and Mr C Erskine
Solicitor for the respondent: Maliganis Edwards Johnson
Date of hearing: 12 May 2005
Date of judgment: 23 August 2005
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